Thursday, October 17, 2013

Now, for the record, we do not actually have an executive-centered presidential system, or even a presidential system. At least, if we do, that’s not the Constitution’s fault. Congress is Article I, and for a reason: Congress is a hugely powerful legislative institution. It can act in almost all areas of governance, overruling the president — given sufficient unity. Indeed, Congress can get rid of the president — again, given sufficient unity.

I have plenty more to say about all of this, but I think I'm going to stop right there, other than referring you to the rest of the post, because this is really, really, important. The US system is one of separated institutions sharing powers. It is not a "presidential" system.

The term "presidential" system, when used in a democracy, is used as a contrast with "parliamentary " systems, where a parliamentary majority is (at least theoretically) omnipotent. Of course in "presidential" systems a president is not all-powerful; otherwise we would not have a democratic system at all but an elective one-person dictatorship. Linz did not need to "make that distinction" because he was talking about democracies, and *of course* a president's power is limited in presidential democracies. To say therefore it's not presidential is silly. And yes, with sufficient supermajorities in presidential (democratic) systems, a legislature can override vetoes, impeach, etc. So what? Again, the point of the word "presidential" is to distinguish it from parliamentary systems where an ordinary majority of the legislature can bring down governments.

There is a concept of "semi-presidential" systems but it refers to countries like Weimar Germany and Fifth Republic France, where the government is responsible to parliament, yet the president has considerable independent powers.

So yes, the US system is presidential (as the term has traditionally been used by political scientists) and no, the president's powers vis-à-vis Congress are not unlimited. All this is so elementary I don't understand the objection to the term "presidential democracy."

In presidential systems an executive with considerable constitutional powers—generally including full control of the composition of the cabinet and administration—is directly elected by the people for a fixed term and is independent of parliamentary votes of confidence. He is not only the holder of executive power but also the symbolic head of state and can be removed between elections only by the drastic step of impeachment. In practice, as the history of the United States shows, presidential systems may be more or less dependent on the cooperation of the legislature; the balance between executive and legislative power in such systems can thus vary considerably. Two things about presidential government stand out. The first is the president’s strong claim to democratic, even plebiscitarian, legitimacy; the second is his fixed term in office. Both of these statements stand in need of qualification....." he adds, being an academic.

For Linz, all this is by way of contrast with systems in which the executive is entirely dependent on the confidence of the legislature. Obviously the US is not such a system, far from it, and it tautologically meets Linz's definition of "presidential" because he derived that definition from the US example. So either you're just saying that this is an ill-chosen term, or (I take it) you're making the more significant point that Linz and his followers have misidentified the features that actually drive the US system, and that you think Neustadt does a better job of capturing these.

OK. It's an interesting but complicated debate. But I would note that even Rudalevige, in the quote above, acknowledges that we do have a powerful president; he just suggests that this is more a later development than a feature of the original design ("not the Constitution's fault"). Against that point, I would refer you to the Framing and ratification debates, which included many alarmed denunciations of the proposed presidency as too powerful, a potential Caesar, a restored monarchy in all but name, etc. The Framers didn't want rule by executive committee (as under the Articles) and specifically declined to make the president a plural office, an appointee of Congress, or a year-by-year magistracy. They also declined suggestions from within their own ranks that presidents be term-limited or barred from re-eligibility. Hamilton wanted a president-for-life, and Adams (technically a Founder, not a Framer.... whatever) wanted presidents addressed with some ludicrously long quasi-monarchical title. Madison was, arguably, the loser in these debates, since his Virginia Plan originally called for a president chosen by Congress, and would have spread the veto power -- a key feature of separation -- through a plural "Council of Revision" instead of giving it to just one person.

In short, I think you can fairly argue that the the constitutional design is Madisonian, OR that it's a Neustadtian "separated system," but it's a little awkward to argue both. Madison didn't want this much separation, and the elements that make it more rather than less separated do so by making it more "presidential" in Linz's sense.

On the definition: a US president does not have "full control of the composition of the cabinet and administration." That's shared with Congress. And the courts, which are also a whole lot stronger in the US than most other places.

On Madison/Neustadt...I understand your point, and we've been around this before; I'm OK with calling the democracy that we have "Madisonian" despite the clear fact that James Madison didn't exactly design it and didn't exactly support much of what it turned out to be, and not everything he said or believed is consistent with what I would describe as "Madisonian." I mean, I could use Dahlian, but Dahl moves around, or I could use Dahl's "minorities rule" or "polyarchy," but I don't think either of those helps very much either, especially for a non-specialist audience but even among democracy scholars.

Well, control of the composition of the cabinet and administration is barely shared with Congress. Presidents can and do fire members of their administrations essentially at will (the radical Republicans' effort to change that under Andrew Johnson was famously defeated), and compared even to US presidents of earlier eras, they're under very little pressure regarding who they appoint in the first place. In Lincoln's day, as Doris Kearns Goodwin won a Pulitzer for redundantly pointing out, they were expected to put fellow party leaders (i.e. their competitors) in the cabinet, whereas a president today can go to the other extreme and appoint someone from the other party to a top position (Obama has not yet had a Democrat as defense secretary), or can turn the administration over to a childhood buddy whom no one's ever heard of (as Clinton did with his first chief of staff). That's enormous personal control of the composition of the administration compared to what prime ministers typically have -- since, for starters, they're choosing their top appointees from among fellow prominent legislators, and in coalitions they'll have deputies and cabinet members literally forced on them as part of the coalition agreement.

As to what to call it all, granted, "Neustadtian" doesn't roll trippingly off the tongue quite as well as "Madisonian." But I think it would better describe your position since Neustadt is the great defender of the features of the US system that you seem to favor.

So the primary distinction between a presidential system and the system of government in place within the US is that a presidential system implies that the president has nearly absolute and unitary control of the executive, whereas within the United States, the president is heavily constrained in the selection, instruction, and dismissal of personnel in the executive branch and therefore does not have unitary control over executive functions of the state? That is, formal distribution of executive powers between various institutions of the executive, legislative, and judicial systems precludes a presidential system?

I see where you're coming from here, but in practice, I feel as if the technical Constitutional powers of Congress to constrain executive authority granted to the President of the United States are curbed by a governing norm of deferment over executive authority to the President. In practice, the Senate usually approves cabinet-level appointments, it's more the exception than the rule when the executive branch personnel (both political and civilian) don't follow directives of the president, and Congress has ceded an extraordinary amount of control over regulatory and military institutions to the President. Is there a practical distinction based on the fact that this is still governing by consent of the legislature rather than governing by constitutional authority?

Caveat: I've only read Matt Yglesias' summaries, not Linz's actual book; I hope to get around to it eventually.Anyway, I think the major point for Linz is that the president and legislature are separately elected and so have equal claim to democratic legitimacy; we definitely have that kind of system, and it definitely opens us up to the danger that Linz (per Yglesias) points out: if the legislature and executive deadlock and it leads to crisis (like, say, a government shutdown) there's no obvious way to resolve that (if the two sides can't come to agreement) short of waiting around for the next election. If, for example, the House Republicans had just refused to reopen the government, how long would it take before the idea that the President could unilaterally overrule them began to gain respectability? Or the Democrats caved and we moved to a de facto House of Commons scenario? Could we have made to the 2014 elections with a shut down government without one of those things occurring, and even if we did it would still be a major, system-shaking disaster. The very possibility of something like government shutdowns is a pretty serious instability, which parliamentary systems don't have to deal with.

That link is worth reading. But there is a problem in comparing the Tea Party to the far-right populist parties of European countries (whether they're the UK, Germany, or France). In the US, the problem is not the Tea Party itself. It's the way in which non-Tea Party Republicans have *reacted* to it. It is the irresponsible strategy of putatively non-extremist Republican leaders and politicians and the passivity and enabling of many non-extremist Republican voters that is driving this. There are relatively straightforward ways for our political culture and its traditions to draw upon resources to correct itself. Those who could correct it have barely lifted a finger to do so since at least the summer/fall of 2008 (when Palin and others arose).

I think as an empirical matter you are just wrong here about exec branch departments and agencies.

One thing -- your Clinton example is about the presidency, not the exec branch. The president definitely has essentially complete control of the "presidential branch" -- the White House staff and EOP agencies.

But they can't actually carry out the law, or at least mostly can't. And when it gets to actual exec branch agencies and departments, Congress and the president must compete for influence, and the president often loses. A great example is with the ACA: we've had Congress hold up confirmation of key presidential nominees, and Congress underfund operations, leaving them unable to be done properly. And we all know about the judicial intervention.

Not to mention state intervention...it's well beyond my expertise to know how many nations would have the ability for a state government to actively undermine implementation of a national policy in the way the US does it, but I think the answer is "not many."

Overall, it's just not the case that the exec branch is "barely" shared.

Jonathan, I've really liked your defense of the Madisonian system. I come at this from a conservative perspective and I have to say I agree with most of your arguments.

Comparisons between the US and Westminster systems have been an ongoing interest of mine. What is your opinion of Australia's system? To my knowledge, the Australian Senate is the only Westminster "upper chamber" with the power to block supply, making it more than a paper tiger, although I believe this has only ever occurred once (in 1975). I don't know enough to be able to say how this has effected Australia's governance but I'm curious. It seems to me the House of Lords and Canada's Senate are pretty toothless and to a large extent undemocratic bodies. Of course I know there are plenty of critiques of our own Senate!

At least for myself, if a Senate is toothless, I don't care too much that it's undemocratic; likewise, I'd greatly prefer that an undemocratic Senate be toothless. If they were democratically elected, folks would want to start giving them power. Then it's like the old saw about too many runners on base clogging up the baselines.

That's not good baseball strategy, and perhaps bad governmental strategy, but I think that, if a unicameral system is working for a country, why tinker with it, unless you can think of a good reason for it, and a reason why you want two separate legislatures.

In my former state of Maine, we had a house and a senate, and pretty much the only real difference between them was their size and the size of districts. Oh, probably a few procedural rules, but both have 2 year-terms, 4-term limits (but one may reenter after a 2 year absence). Having two otherwise identical chambers just seems silly to me.

Interestingly, I read that when Australia was looking around for what governance system to set up, the US had just gone through the civil war, so that model was seen as discredited. In the end, we did a hybrid between the US and English system, with an upper house representing the states (now 12 senators per state, 6 up for election each cycle) and your typical lower house of Westminster systems.

From memory, the 1975 crisis saw either a rule or a norm changed, so that the senate can't block supply (budget). It certainly has never happened again, or even been threatened, so I don't think that's possible. But I'm not as up-to-date on Australia's system as I should be.

If we were to follow JB's own line of reasoning that it's more a problem concerning a dysfunctional major party than it is a case of a fatally flawed constitutional system, then the key issue is still systemic, but it's intra-party. A crucial flaw that comes to mind is the politicians' exceptional paranoia about primaries--not just that they would lose, but merely that they might have to face off in one (but still win). I wonder if there's comparative political science not on overall constitutional systems, but on political parties. That might be just as, if not, more illuminating than a focus on constitutional structure.

Are there cases in other parts of the world of when an intra-party governance/primary system went off the rails and also produced especially high levels of paranoia by party members?

The term "presidential system" to describe systems like that of the US goes back way, way, way before Linz. Walter Bagehot used it back in the 1860's: "And every incident in this part of American financial history exemplifies the contrast between a Parliamentary and Presidential government." http://books.google.com/books?id=BK-pBPxnI5kC&pg=PA302It's a little bit late to object to it now, especially since everybody know what it means--it's used in contrast to "parliamentary" system--and nobody thinks it means the president is a dictator who can override the wishes of Congress; on the contrary, Bagehot complained precisely that the system weakened both the executive and the legislature.

As for Jonathan's point about "courts, which are also a whole lot stronger in the US than most other places" that has nothing to do with presidential versus parliamentary systems; some parliamentary systems, like that of Germany, have judicial review and some presidential systems do not.

Yes, the description goes way back. It is still essentially wrong, as experts in the US system have been saying for nearly as long.

As far as the courts are concerned...I'm even less an expert on comparative judiciary than I am on some of the other comparative stuff, but for the US the key point is that the courts have important legislative and executive actions. It's not just about knocking some laws out; it's about constantly rewriting law themselves.

Obviously, these are complicated issues that are hard to get straight in short blog comments. But, that said, once more unto the breach:

> Mack McLarty was not a Cabinet member, but chiefs of staff are important insofar as they can basically order Cabinet members around. The heads of US executive departments tend to be nonentities with no constituencies of their own to speak of. If David Cameron fired George Osborne, it would THE big news story in Britain; if Obama fires Jack Lew, that might be big (depending on why) within the Acela corridor, but most Americans have no idea who Jack Lew is. I suppose some parliamentary systems might allow for relatively politically weak Cabinets, but again, it seems to me that the US president, for most comparative purposes, has considerable personal discretion in controlling the executive, which is why Neustadt focused so intently on his/her "reputation," right? And also why:

> Arguably, the reason Obama has had executive appointments held up so long in the Senate is that he was operating under that longstanding norm -- that presidents, with rare exceptions, get to appoint whom they wish. If you don't see such standoffs in parliamentary systems, it's because the premier wouldn't keep an appointment pending against the resistance of the legislature in that way; s/he would just drop it and move on to someone acceptable to his/her parliamentary colleagues. Which is to say:

> Cases like Richard Cordray's are actually, themselves, examples of the dysfunction, the chronic low-intensity constitutional crisis that this whole discussion is meant to explain. They're not, therefore, particularly helpful as data points in defense of the Madisonian system. Likewise for the outsized power of the states.

Which brings us back to the real question at issue here:

".....it's theoretically possible in a parliamentary system for an election-produced deadlock to prevent formation of a government, forcing a new election, which gets the same results... // I'm not sure that gets us anywhere."

Well, first, it's unlikely that this is how it would play out, because the deadlock would itself be a principal issue in the campaign leading to the new election, making the dynamics of that election different from the one just past. Yes, theoretically the same deadlock could just reappear anyway. I think it's doubtful. But the broader point is that theoretically, any system can suffer some kind of meltdown; the question is, as a practical matter, do Madisonian systems invite this, and/or inhibit finding solutions when it happens, to a greater degree than classic parliamentary systems?

On that, the empirical evidence before us at the moment is (a) lots of parliamentary systems more or less functioning normally in advanced countries (excepting perhaps Italy, as usual), and (b) the US system in meltdown or repeatedly suffering the threat of it. I mean, seriously, we just went through a week where if John Boehner had had a case of indigestion at the wrong moment, it could have tanked the global economy. This didn't happen, but does that mean the system successfully self-corrected? Or did we just get lucky and (temporarily) escape the predictable consequences of a major design flaw -- the one that Linz describes, whatever you choose to call it -- but in a way we might not next time?